Jackson v. Homewood, City of
MEMORANDUM OPINION DENYING 68 , 69 , 70 , 71 , and 72 Motions to Strike; finding as MOOT 73 , 78 , 79 , 80 , and 81 Motions to Strike; finding that 59 Motion for Summary Judgment is due to be granted. Signed by Judge Abdul K Kallon on 8/21/2015. (YMB)
2015 Aug-24 AM 07:39
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MICHAEL D. JACKSON,
CITY OF HOMEWOOD,
Civil Action Number
Michael D. Jackson pursues claims against the City of Homewood (“the
City”) for failure to accommodate and discrimination under the Americans with
Disabilities Act (“ADA”), age discrimination under the Age Discrimination in
Employment Act (“ADEA”), and retaliation under the ADA and ADEA. See doc.
29. Jackson contends that the City failed to make reasonable accommodations to
account for his hypertension and degenerative joint disease in his knee, discharged
him because of his age and disabilities, and retaliated against him for filing a
charge of discrimination with the Equal Employment Opportunity Commission
(“EEOC”). See id. The City moves for summary judgment on all of Jackson’s
claims, doc. 59, and the motion is fully briefed and ripe for review, docs. 74; 77.
The parties have also moved to strike portions of their respective evidentiary
materials, docs. 68; 69; 70; 71; 72; 73; 78; 79; 80; 81; 88. After carefully
reviewing the evidentiary submissions and the briefs, the court finds that there are
no material factual disputes, and the City’s motion is due to be granted.
I. MOTIONS TO STRIKE
Before addressing the summary judgment motion, the court will first address
the parties’ motions to strike. Jackson contends, for various reasons, that the court
should strike several affidavits and documents submitted by the City. 1 See docs.
68–73. However, most of the issues Jackson raises are not proper for a motion to
strike. For instance, in Jackson’s second motion to strike, he objects to Homewood
Mayor Scott McBrayer’s statement that the City discharged Jackson for “certain
rules and regulations” because Mayor McBrayer did not “cite the rules he is
talking about,” doc. 69 at 1, and in Jackson’s third motion to strike, he objects to
Homewood Chief of Police Jim Roberson’s reference to Jackson’s disciplinary
hearing because the City failed to attach a record of the hearing to the affidavit,
doc. 70 at 2. In fact, Jackson’s contentions mostly challenge the sufficiency and
probative weight of the City’s evidence regarding its legitimate, nondiscriminatory
justification for Jackson’s termination. See, e.g. doc. 69 at 1 (arguing that the court
should strike Mayor McBrayer’s statement that he terminated Jackson based on
Because the court does not rely on the affidavits of Blake Chaney, Hannah White,
or Waleed Khalidi, the court finds that Jackson’s sixth motion to strike, doc. 73, is
“violation of certain rules and regulations” because “the employer must produce
admissible evidence indicating that it …based its employment decision on a
reasonably specific, legitimate reason . . .”). These contentions are not proper
grounds for a motion to strike.
Jackson also challenges some documents on authenticity grounds. See doc.
72. However, “the Federal Rules of Civil Procedure does not require that
‘evidence’ submitted in support of summary judgment be sworn affidavits or
documents authenticated by sworn testimony, but instead provides that ‘[a] party
may object that the material cited to support or dispute a fact cannot be presented
in a form that would be admissible in evidence.’” Moore v. J & M Tank Lines, Inc.,
No. CV-11-BE-01000-S, 2012 WL 3773626, *7 (N.D. Ala. Aug. 27, 2012) (citing
Fed. R. Civ. P. 56(c)(2)). Similarly, although Jackson contends that several
exhibits contain hearsay statements, docs. 69–71, the court “may consider a
hearsay statement in passing on a motion for summary judgment if the statement
could be reduced to admissible evidence at trial or reduced to admissible form.”
Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir. 1999) (citations and internal
quotation marks omitted). Finally, although Jackson contends that Mayor
McBrayer, Chief Roberson, and Sgt. Andrew Didcoct do not have first-hand
knowledge about the circumstances surrounding the incident between Jackson and
Jackson’s accuser, see docs. 69, 70, 71, after carefully reviewing the evidentiary
record, the court finds that these individuals are competent to testify about an
internal HPD investigation, and the discharge of a city employee. For these
reasons, Jackson’s motions to strike are DENIED.
With respect to the City’s four motions to strike, see docs. 78, 79, 80, 81, the
evidence that the City challenges in its second, third, and fourth motions does not
raise disputes of material fact. Therefore, those motions are MOOT. The City’s
first motion to strike, doc. 78, challenges a declaration by Jackson that purportedly
raises a dispute of material fact. See doc. 74-1 at 2–6. Specifically, the City
contends that Jackson’s claim that he “asked Chief Roberson and Deputy Chief
Copus if they received a copy of [his] EEOC charge [and] they denied it[,]”
directly contradicts his deposition testimony that he has no facts proving that the
City had any knowledge of his EEOC charges. Compare id.at 5 with doc. 61-2 at
123. “When a party has given clear answers to unambiguous questions which
negate the existence of any issue of material fact, that party cannot thereafter create
such an issue with an affidavit that merely contradicts, without explanation,
previously given clear testimony.” Van T. Junkins & Assoc. v. U.S. Indus., Inc.,
736 F.2d 656, 657 (11th Cir. 1984); see also Santhuff v. Seitz, 385 Fed. App’x 939,
944–45 (11th Cir. 2010) (the district court properly disregarded a third party
affidavit that contradicted plaintiff’s earlier deposition testimony that he had no
evidence that defendant entered his property to steal his pet turtles). Although
Jackson offered no explanation for these directly contradictory statements, because
Jackson’s contention that he asked Chief Roberson and Deputy Copus about the
EEOC charge does not impact the court’s analysis of his retaliation claim, see infra
at 28–29, the City’s first motion to strike, doc. 78, is MOOT. See Lane v. Celotex
Corp., 782 F.2d 1526 (11th Cir. 1986). Likewise, because the remainder of the
City’s first motion to strike challenges evidence that does not raise disputes of
material fact, those objections are also MOOT.
II. SUMMARY JUDGMENT STANDARD OF REVIEW
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” “Rule 56
mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear a burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(alteration in original). The moving party bears the initial burden of proving the
absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the
nonmoving party, who is required to “go beyond the pleadings” to establish that
there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation marks
omitted). A dispute about a material fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
disputes will be resolved in the non-moving party’s favor when sufficient
competent evidence supports the non-moving party’s version of the disputed facts.
See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is
not required to resolve disputes in the non-moving party’s favor when that party’s
version of events is supported by insufficient evidence). However, “mere
conclusions and unsupported factual allegations are legally insufficient to defeat a
summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the
opposing party’s position will not suffice; there must be a showing that the jury
could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th
Cir. 1990) (citing Anderson, 477 U.S. at 252).
III. Factual Allegations
Jackson, who was 46 years old when the City terminated his employment,
joined the Homewood Police Department (“HPD”) in 1997. Docs. 32-2 at 3; 61-1
at 11, 25. Relevant to his disability claims, Jackson suffered from various
impairments during his employment. For example, in 2011, Jackson drove to a
hospital after experiencing chest pain, doc. 74-1 at 2, and between 2011 and 2012,
Jackson’s co-workers administered blood pressure tests to him at work on several
occasions, id. Jackson also experienced knee pain as a result of a prior arthroscopic
surgery, see id.; docs. 61-22 at 2; 74-5 at 11; however, he described the pain as
minor to Dr. Bruce Romeo, and represented that it only occurred during
rehabilitation exercises. Doc. 74-5 at 11. Notwithstanding these health problems,
Jackson consistently passed his annual “fit for duty” examination, see doc. 61-22 at
1, and never portrayed himself as disabled. In fact, a month before his discharge,
Jackson informed Dr. Romeo that he did not suffer from any health condition that
would interfere with his ability to carry out the duties of a HPD officer. Doc. 74-5
at 9. Likewise, even after his termination, Jackson filed an application for
unemployment compensation benefits with the Alabama Department of Labor, in
which he represented that he wanted to work again as a full-time police officer, and
did not consider himself disabled. Doc. 61-21 at 2–3. Indeed, Jackson obtained
employment as a full time police officer for the city of Riverside, Alabama three
months after his discharge. Doc. 61-1 at 24.
The events leading to Jackson’s discharge began in June of 2012, when he
met Blake Chaney, an 18 year old female college student, at the Purple Onion
restaurant in Homewood, Alabama, where she would “hang out” with other police
officers. Docs. 61-1 at 11, 54; 74-1 at 1–2. Jackson and Chaney eventually
connected through social media and, sometime later, Jackson obtained Chaney’s
mobile phone number. Doc. 61-1 at 56. On the evening of August 6 and early
morning of August 7, 2012, Jackson and Chaney had the following exchange via
[Jackson]: Hey, you ladies coming to the onion tonight?
[Chaney]: I gotta 12 O’clock curfew tonight!
[Jackson]: What did you do? Lol
[Chaney]: Haha last week at home and I got a lot of [things] to do so she
just wants me to get a good night of sleep
[Jackson]: OK, I saw where it was Kylie’s bday. Tell her I said happy
birthday. I saw your pics on [Facebook]. You two are
gorgeous! Very attractive.
[Chaney]: We’re not friends anymore . . . hahaha. But I’ll tell her. And thank
[Jackson]: Why not? What happened?
[Chaney]: She doesn’t like me hanging out with other people 
[Jackson]: On your [Facebook] page [it] says your in a relationship
with her, were you two a couple?
[Chaney]: Haha no she did that
[Jackson]: Ok, just wondering. lol you are very attractive but the best word I
could come up with to describe u is very sexy.
[Jackson]: I bet you have a lot of guys asking u out?
Doc. 61-3 at 2–5. Chaney did not respond to Jackson’s final two text messages. Id.
Sometime after this exchange, Jackson saw Chaney’s automobile during his
patrol near the Edgewood neighborhood of Homewood. As a result, Jackson
initiated what he called a “good old boy” traffic stop, which Jackson described as
involving the officer giving the offending driver an un-official warning. Doc. 61-1
at 65–66, 69, 72. Perhaps because of the unofficial nature of the traffic stop,
Jackson failed to follow HPD protocol, which included keeping his emergency
lights operational, informing dispatch about the stop, obtaining the driver’s license
and insurance information and checking for outstanding warrants, radioing
dispatch at the conclusion of the stop, and recording the stop on the mobile video
recorder (“MVR”). Id. at 45, 72–79.
A week after the stop, a fellow officer informed Jackson that other officers
had encouraged Chaney to file a complaint against Jackson. Doc. 59-1 at 5.
Consequently, Jackson sent Chaney the following text messages:
[Jackson]: Hey, its mike with the pd, I need to talk to you soon but not at the
onion. Maybe u can call me tonight after 1030?
[Chaney]: About what?
[Jackson]: When I stopped u last week, somebody is trying to start
something, its ok I just need to talk to ya. Can u call me in 5 min?
Doc. 61-3 at 5–6. Chaney subsequently called Jackson and the two talked for 11
minutes. Id. at 7. Three days later, despite Jackson’s attempts to dissuade her,
Chaney filed a complaint, alleging that Jackson sent her text messages that made
her feel “uncomfortable and scared[,]” and asserting that Jackson pulled her over
“for no reason (just to talk). And recently he texted me to call him, [and] when I
did, he spent 11 minutes begging me to back him up.” Doc. 61-8.
After receiving Chaney’s complaint, Sgt. Didcoct, a member of HPD’s
internal affairs division, initiated an investigation, doc. 61-11 at 2–3, in which he
interviewed Chaney, photographed Chaney’s vehicle, watched MVR video of the
traffic stop, examined the text messages between Jackson and Chaney, and
reviewed Jackson’s daily reports, id. at 3. Although Sgt. Didcoct did not interview
Jackson, he directed Jackson to submit a written statement, which Jackson failed to
do. Docs. 61-11 at 3. Based on the MVR footage, Sgt. Didcoct learned that
Chaney’s headlights and fog lights were operational,2 docs. 61-9; 61-25, that unlike
normal circumstances when the MVR recorded the entire traffic stop, doc. 61-11,
Jackson’s MVR video ended abruptly as Jackson exited the vehicle, doc. 61-25;
see doc. 61-11. Moreover, immediately before the video ended, Sgt. Didcoct heard
an audible beeping sound, which indicated that someone manually terminated the
Specifically, video evidence indicates that Chaney’s front left headlight and fog
lights were operational at the 14 second mark, and that the front right headlight and
fog lights were operational at the 39 second mark. Doc. 61-25.
recording. Docs. 61-11 at 3; 61-25. In his deposition, Jackson blamed the recording
issue on a malfunction of his MVR device and/or due to the DVD being full. Doc.
61-1 at 66. However, Sgt. Didcoct found no problem with the MVR system and
noted that Jackson consistently reported that his vehicle and MVR were in full
working order. See, e.g. doc. 61-11 at 3.
After the investigation, Sgt. Didcoct reported his findings to Chief Roberson.
Doc. 61-11 at 2. In early September, Jackson received notice from the City that it
intended to charge him with conduct unbecoming a classified employee, acting in a
manner “as to bring discredit upon himself or the Police Department,” and
violations of HPD’s MVR rules. Doc. 61-12. Pursuant to the notice, Jackson
received a hearing on September 18, 2012, which he attended with his attorney and
responded to the charges. Docs. 61-10 at 3; 61-11 at 2. As a result of the
investigation and hearing, and after reviewing Jackson’s disciplinary history, Chief
Roberson recommended that Mayor McBrayer discharge Jackson. Doc. 61-10.
Mayor McBrayer accepted the recommendation. Docs. 61-10; 61-11 at 2; 61-18.
After receiving notice of HPD’s intent to bring charges against him, Jackson
filed a charge of discrimination with the EEOC on September 12, 2015, claiming
that Sgt. Didcoct’s investigation was pretext for age discrimination because
Jackson was the “second oldest patrolman in the department,” that the HPD denied
him a promotion to “motor scout” in 2011, and rumors about “getting rid of older
patrol officers and replacing them with younger patrol officers.” Doc. 32-1 at 2. On
the day of his discharge, Jackson and his attorney amended the EEOC charge to
add disability claims based on “a heart condition, including high blood pressure.”
Doc. 32-2 at 3. Thereafter, Jackson amended his EEOC charge again to include a
claim that the City retaliated against him for filing his age discrimination charge.
Doc. 32-3 at 2.
The City challenges Jackson’s claims on multiple grounds, which the court
will address below. In Section A, the court will address the City’s contention that
Jackson failed to exhaust administrative remedies for his knee-based disability
claims. In section B, the court will address the age and disability discrimination
claims and, in section C, whether Jackson failed to establish that the City’s reasons
for his discharge are pretextual. Finally, the retaliation claim in Section D.
A. Jackson Failed to Establish that he is Disabled
To establish his disability claims, Jackson must show that “(1) he has a
disability; (2) he is a qualified individual; and (3) he was subjected to unlawful
discrimination because of his disability.” Davis v. Fla. Power and Light Co., 205
F.3d 1301, 1305 (11th Cir. 2000). Unfortunately for Jackson, his ADA claims,
which are based on knee and cardiovascular impairments, see doc. 29 at 7–10,
suffer from many flaws.
1. Jackson Failed to Exhaust his Administrative Remedies in Regards to his
Knee-Based Discrimination Claims
Before addressing whether Jackson is even disabled, the court must first
consider whether Jackson is entitled to go forward with one of his disability
claims. Relevant here, although Jackson’s ADA claims are based on his knee and
cardiovascular conditions, the only disabling condition he mentions in his EEOC
charges is cardiovascular related. Docs. 32-1; 32-2; 32-3. Therefore, the threshold
question is whether Jackson exhausted his administrative remedies with respect to
his knee-based claims. The court must resolve this issue because a plaintiff
asserting claims for discrimination must first exhaust his administrative remedies
by filing an EEOC charge. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317
(11th Cir. 2001) (citing 42 U.S.C. § 2000 3–5(b)). Moreover, “[a] plaintiff’s
judicial complaint is limited by the scope of the EEOC investigation which can be
reasonably expected to grow out of the charge of discrimination.” Gregory v. Dept.
of Human Resources, 355 F.3d 1277, 1280 (11th Cir. 2004) (internal quotation
marks omitted). The central question regarding the scope of the charge of
discrimination is “whether [Jackson’s] complaint was like or related to, or grew out
of, the allegations in the EEOC charge.” Id. at 1280.
Relying on Gregory and Sanchez v. Standard Brands, Inc., 431 F.2d 455,
466 (5th Cir. 1970), Jackson maintains that the court should not strictly construe
the scope of his charge, and that his purported knee condition is within the scope of
the initial EEOC investigation because “‘[c]ourts are extremely reluctant to allow
procedural technicalities to bar claims brought under the Act.’” Doc. 74 at 17–18
(quoting Sanchez 431 F.2d at 466). Contrary to Jackson’s contention, the issues
here are more than “procedural technicalities.” In fact, the Sanchez and Gregory
cases are distinguishable because both involve plaintiffs who neglected to mark a
form check-box indicating the legal basis of their discrimination claims, but
included facts that would have reasonably indicated alternative legal theories. See
Gregory, 355 F.3d at 1280; Sanchez, 431 F.2d at 462–63. Also, the plaintiffs in
Gregory and Sanchez filed their charges without the assistance of counsel. Id. In
contrast, Jackson had a full and fair opportunity, with the assistance of his attorney,
to state the general factual basis for his disability claims at the EEOC stage, and, in
fact, specifically amended his charge of age discrimination to include disability
claims based solely on his “heart condition including high blood pressure.” See
doc. 32-2 at 2. Put simply, Jackson’s failure to indicate in his charge that he
purportedly has a knee-based disability is not a mere procedural error. Instead,
Jackson failed to include substantive facts about a distinct disability that the City
allegedly failed to accommodate, and which allegedly led to his discharge.
Moreover, the court cannot find that Jackson’s knee-based claim “gr[e]w out
of” his cardiovascular issues or consider the knee ailment “like or related” to the
heart condition. After all, the two conditions exhibit different symptoms as a result
of distinct environmental triggers, would hinder Jackson differently, and might
require different types of accommodation. Indeed, Jackson cites different evidence
in his brief in support of each condition. Compare doc. 71-5 at 13–14 (record from
Dr. Bruce Romeo–created almost six months after Jackson’s was discharged—
stating that Jackson’s knee would cause difficulty running) with docs. 71-1 at 2;
71-7 (a 2011 episode where Jackson was transported to a hospital for chest pain,
and sometimes required on-the-job blood pressure checks). Accordingly, Jackson’s
disability claims that are based on a purported knee disability fail as a matter of
2. Jackson has Failed to Establish that his Heart Condition Significantly
Limited a Major Life Function
The City also contends that Jackson’s hypertension-based ADA claims fail
at the prima facie case level. Doc. 59 at 4–5. Because Jackson’s claims rely on
circumstantial evidence, he bears the initial burden of establishing a prima facie
case. 3 See Holbrook v. City of Alpharetta, 112 F.3d 1522, 1526 (11th Cir. 2004). A
Jackson cites numerous derogatory statements concerning his age and heart
condition in support of his claims. However, “stray remarks [and] statements by
nondecisionmakers” are not direct evidence that the City discharged Jackson based
on discriminatory animus. Standifer v. Sonic-Williams Motors, LLC., 410 F. Supp.
“disability” includes: “(A) a physical or mental impairment that substantially limits
one or more of [Jackson’s] major life activities . . . ; (B) a record of such
impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. §
12102(2); see also Harris v. H and W Contracting Co., 102 F.3d 516, 518–20
(11th Cir. 1996). Accordingly, “[m]erely having a physical impairment is
insufficient to be covered by the ADA.” Schwertfager v. City of Boynton Beach, 42
F. Supp. 2d 1347, 1357–58 (S.D. Fla. 1999). Rather, to prevail, Jackson must show
that the “impairment substantially limit[s] [a] major life activity.” Bragdon v.
Abbott, 524 U.S. 624, 631 (1999). “In determining whether a disability qualifies as
a substantial limitation of a major life activity, courts are to consider ‘(1) the nature
and severity of the impairment; (2) the duration or expected duration of the
impairment; (3) the permanent or long-term impact, or the expected permanent or
long term impact of or resulting from the impairment.’” Schwertfager, 42 F. Supp.
2d at 1359 (citing Gordon v. E.L. Hamm and Assoc., Inc., 100 F.3d 907, 911 (11th
Jackson maintains that his heart condition “substantially limits the major life
function of his circulatory system” by “impair[ing] his ability to run or walk for
long distances while working for Defendant.” Doc. 74 at 19–20. In support of his
2d 1205, 1216 (N.D. Ala. 2005) (citing Price Waterhouse v. Hopkins, 490 U.S.
228, 277 (1989) (O’Connor, J., concurring)); see also EEOC v. Alton Packaging
Corp., 901 F.2d 920, 924 (11th Cir. 1990).
contention, Jackson cites an incident in 2011 that resulted in his admission to a
hospital for chest pains, episodes at work requiring his co-workers to check his
blood pressure, and a medical record from an exam that occurred five months after
his termination that actually references Jackson’s knee rather than his
hypertension. See docs. 74-1 at 3–4; 74-5 at 12–13. None of these incidents,
however, and nothing in the record, supports Jackson’s contention that his
hypertension impaired one of his major life functions. To the contrary, the record
indicates that the condition had a minimal impact on Jackson’s ability to perform
his duties as a police officer. Among other things, Jackson (1) raced in a
“Motocross series” in 2012, doc. 61-26, (2) expressed interest in working as a
motorcycle patrol officer, id., (3) has fit-for-duty examination records which
indicate that he could perform the essential functions of his job without any
restrictions, doc. 61-22 at 1, (4) self-reported in 2012 that he did not have any
problems that would interfere with his ability to do his job, doc. 74-5 at 9, and (5)
reported to the Alabama Department of Labor immediately after his discharge that
he did not have a disability and could, in fact, work full time as a police officer,
doc. 61-21 at 2–3. Indeed, Jackson subsequently obtained full time employment as
a Riverside, Alabama police officer. Doc. 61-1 at 24. These are hardly activities or
conduct that evidence a disability.
Notwithstanding this evidence, Jackson contends that his heart condition
qualifies as an ADA disability, in part, because a cardiologist prescribed Lisinopril,
and Dr. Romeo stated, in 2013, that Jackson would have difficulty running. See
doc. 74 at 17. This contention is unavailing because the Lisinopril prescription
alone does not establish that Jackson’s hypertension impacted one of his major life
activities. See, e.g. Schwertfager, 42 F. Supp. 2d at 1357–58. Moreover, Dr.
Romeo’s 2013 observation about Jackson’s ability to run is based on the knee
ailment,4 and was made almost six months after Jackson’s discharge. Doc. 74-5 at
12–13. In other words, while the evidence indicates that Jackson suffered health
Even if Jackson’s knee-based claims are proper grounds for his discrimination
claim, Jackson has failed to establish that this ailment substantially limited one of
his major life activities. In fact, the only evidence Jackson cites in support of this
claim is his own declaration that he worked “in pain during most of my last few
years of employment,” and a notation from Dr. Romeo stating that Jackson would
have difficulty running. See doc. 74 at 3 (citing docs. 74-1; 74-5 at 12–13)). The
declaration does not create a material dispute because, based on the medical
evidence, Jackson reported to Dr. Romeo in 2011 that his knee only hurt during
physical therapy and “after that no pain at all.” Doc. 74-5 at 11. In fact, in August
of 2012, Jackson told Dr. Romeo that he had no problems that would interfere with
his ability to work, and that he had no undisclosed health problems. Doc. 61-22 at
3. Finally, over the course of his last few years of employment, Jackson
consistently passed fit-for-duty exams. Id. at 6 – 14. Moreover, Dr. Romeo’s
observation about Jackson’s difficulty running occurred almost six months after
Jackson’s discharge. Doc. 74-11 at 13. Finally, although the self-serving nature of
Jackson’s testimony does not, on its own, permit the court to disregard it, Feliciano
v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2015), the court can
discount a declaration if it is “blatantly contradicted by the record, blatantly
inconsistent, or incredible as a matter of law . . .” Adams v. City of Ormond Beach,
514 Fed. App’x 952, 955 (11th Cir. 2013) (citing Feliciano, 707 F.3d at 1247,
1253-54). This is precisely the case here with respect to Jackson’s statement that
his knee condition substantially limited his ability to run and walk.
problems, it does not suggest that those problems limited any major life function.
See Schwertfager, 42 F. Supp. 2d at 1357–58. Accordingly, because Jackson has
failed to introduce sufficient evidence of a disability, as defined by the ADA,
summary judgment is due on his ADA claims.
B. Jackson Failed to Establish that the City Discriminated Against
him Because of his Age or Disability
Alternatively, Jackson’s ADA claim fails because of his failure to proffer
evidence showing that his purported disability actually motivated the City’s
decision to discharge him. The ADEA claim fails also for similar reasons. The
main thrust of Jackson’s disparate treatment claims consists of evidence that the
City treated purportedly similarly situated, non-disabled, substantially younger
employees charged with “conduct unbecoming a classified employee” more
favorably. Doc. 74 at 23–24. Specifically, Jackson cites the following instances of
officer misconduct that did not result in discharge: (1) an officer used social media
to brag about using excessive force on a suspect, doc. 90-5, (2) an officer used
racially derogatory language to insult another officer, doc. 90-6, (3) an off duty,
intoxicated officer wrecked a City vehicle, doc. 90-7, and (4) an officer wrecked a
City vehicle and lied about the cause, doc. 90-8. “To establish discrimination in
discipline, . . . a plaintiff must first make out a prima facie case demonstrating: 1)
that he belongs to a protected class under Title VII; 2) that he was qualified for the
job; and 3) that a similarly situated employee engaged in the same or similar
misconduct but did not receive similar discipline.” Alexander v. Fulton Cty., 207
F.3d 1303, 1336 (11th Cir. 2000). “To be an adequate comparator, the
preferentially treated individual from outside the plaintiff’s protected class has to
be similarly situated to the plaintiff in all relevant respects.” Smith v. LockheedMartin Corp., 644 F.3d 1321, 1326 n.17 (11th Cir. 2011) (citing Holifield v. Reno,
115 F.3d 1555, 1562 (11th Cir. 1997)). Critically, “the quantity and quality of the
comparator’s misconduct [must be] nearly identical [to Jackson’s alleged
misconduct] to prevent courts from second guessing employers’ reasonable
decisions and confusing apples with oranges.” Maniccia v. Brown, 171 F.3d 1364,
1368 (11th Cir. 1999); see also Foster v. Biolife Plasma Serv’s, L.P., 566 Fed.
App’x 808, 811 (11th Cir. 2014) (requiring comparator to be comparable in “all
relevant aspects,” and evidence that comparator engaged in conduct that was
“nearly identical” to the plaintiff’s alleged conduct).
Jackson’s comparators are not similarly situated because they did not engage
in nearly identical conduct. The City discharged Jackson because it determined
that, while on duty, he sent sexually suggestive text messages to a civilian which
made her uncomfortable, initiated a traffic stop for no apparent reason other than to
talk to this civilian after she declined to meet him at a restaurant, turned off his
MVR equipment during the stop, and then tried to pressure her to “back him up”
about the incident. See docs. 61-10; 61-11; 61-12; 61-15; 61-17. Moreover,
although the City also charged each of Jackson’s comparators with “conduct
unbecoming a classified employee,” unlike Jackson, the comparators were not
charged also with failure to use an MVR device.5 Compare docs. 90-5; 90-6; 90-7;
90-8 with docs. 61-11; 61-17. Simply put, because Jackson’s alleged misconduct is
materially different from that of his comparators, and because the City charged
them with different combinations of rule violations, Jackson’s prima facie case
fails. See, e.g. Miller-Goodwin v. City of Panama City Beach, 385 Fed. App’x 966,
973 (11th Cir. 2010) (comparators did not establish causation because “there has
been no showing that any [comparator] violated all of the Rules and Regulations
that resulted in [plaintiff’s] termination or that their alleged misconduct was nearly
identical to [plaintiff’s]”). Accordingly, because Jackson has not proffered any
other evidence indicating that the City discharged him because of his age or
disabilities, summary judgment is due to be granted on his ADA and ADEA
disparate treatment claims.
Jackson contends that the incident involving excessive force by another officer
also included an MVR rules violation because the offending officer’s MVR device
was not recording during the incident. Doc. 74 at 10. However, Sgt. Didcoct
attributed this to a problem with the MVR system–i.e. Sgt. Didcoct explained that
when the incident occurred in 2011, because MVR devices drained the vehicle’s
batteries, the camera automatically shut down after forty-five minutes and officers
had to manually log back into the system to re-start the MVR. Doc. 90-2 at 12. He
added that after the excessive-force incident, the HPD re-programmed the software
so that the MVR automatically re-booted after the officer started the patrol vehicle.
Id. In other words, unlike Jackson, a problem with the MVR caused the failure to
record rather than an affirmative act by the officer.
C. The City has Proffered Nondiscriminatory Reasons for Jackson’s
Discharge and Jackson has Failed to Present Sufficient Evidence that
the City’s Reasons were Pretext for Disability or Age Discrimination
Even if Jackson can establish a prima facie case of disability and age
discrimination,6 summary judgment is still due because of Jackson’s failure to
establish that the City’s proffered reasons for his discharge were pretext for
disability or age discrimination. As justification for the discharge, the City
contends that it discharged Jackson for violating two official policies based on the
incident involving Chaney. See docs. 61-10; 61-11; 61-12; 61-15; 61-17. Because
the City’s “burden of rebuttal is exceedingly light. . . ,” Perryman v. Johnson
Prods. Co., Inc., 698 F.2d 1138, 1142 (11th Cir. 1983) (citing Texas Dept. of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254–55 (1981)), the burden shifts to Jackson to
prove that the City’s reasons were pretextual. “To show pretext, [Jackson] must
present sufficient evidence ‘to permit a reasonable fact finder to conclude that the
reasons given by the employer were not the real reasons for the adverse
employment decision.’” Gerard v. Board of Regents of the State of Ga., 324 Fed.
The City contends that, because of his purported disabilities which made him
unfit to work as an officer, Jackson cannot establish his prima facie case of age
discrimination. Doc. 60 at 30; see also Turlington v. Atlanta Gas Light Co., 135
F.3d 1428, 1432 (11th Cir. 1998) (prima facie case for age discrimination requires
a showing that plaintiff was qualified to do the job). However, because Jackson is
not disabled for ADA purposes, see supra at 15–19, the court finds that Jackson
was qualified to serve as a police officer for the City. Accordingly, because the
City does not offer facts challenging the remaining elements of Jackson’s age
discrimination claim, the court finds that Jackson has met his prima facie case.
App’x 818, 826 (11th Cir. 2009) (quoting Combs v. Plantation Patterns, 106 F.3d
1519, 1528 (11th Cir. 1997) (citation omitted)). Specifically, Jackson can
demonstrate pretext through “weaknesses, implausibilities, inconsistencies, or
contradictions” in the City’s explanation, Brooks v. Cty. Comm’n of Jefferson Cty.,
446 F.3d 1160, 1163 (11th Cir. 2006), or by introducing evidence that would
permit “the jury to reasonably disbelieve the employer’s proffered reason.” Steger
v. Gen. Elec. Co., 318 F.3d 1066, 1079 (11th Cir. 2003). Moreover, Jackson must
make this showing through “concrete evidence in the form of specific facts which
show that [the City’s] proffered reason [was] mere pretext. Mere conclusory
allegations and assertions [do] not suffice.” Bryant v. Jones, 575 F.3d 1281, 1308
(11th Cir. 2009).
As evidence of pretext, Jackson maintains that HPD’s investigation was
“incomplete” because (1) Sgt. “Didcoct failed to interview Jackson or any of the
officers with firsthand knowledge of Jackson’s relations with Chaney, or the
relations of those officers with Chaney . . [,]” doc. 74 at 21, (2) Chaney was
apparently “unwilling” to cooperate with the investigation, id., and (3) Chief
Roberson and Mayor McBrayer did not review the “complete investigation file[,]”
id. at 23. These facts, however, are not sufficient to indicate that “both the reason
[for Jackson’s termination] was false, and that discrimination was the real reason”
for his discharge. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 512 n.3 (1993).
For example, while Jackson is correct that Sgt. Didcoct did not interview Jackson,
Sgt. Didcoct gave Jackson the opportunity to file a written response. See doc. 6111 at 3. Critically, Jackson does not explain how Sgt. Didcoct’s failure to interview
other officers who knew Chaney, or had “knowledge of Jackson’s relations with
Chaney,” would have altered the outcome of the investigation especially since the
other officers were not witnesses to Jackson’s conduct. Apparently, Jackson
believes that Sgt. Didcoct would have learned that other officers had a similarly
“flirtatious” rapport with Chaney. See doc 74-1 at 1. Even so, this fact does not
show that Jackson’s purported rule violations were not the actual reason for his
discharge. Moreover, the fact that Chaney may have mutually “flirted” with other
officers does not mean that she welcomed Jackson’s conduct or that the other
officers engaged in the type of alleged conduct that resulted in Jackson’s discharge.
After all, Chaney’s mutual flirtation with other officers is not an open invitation to
Jackson, nor is her relationship with other officers necessarily probative in an
investigation of Jackson’s concocted traffic stop and the personal text messages
that Chaney contends made her “uncomfortable and scared.”
Next, with respect to Chaney’s purported unwillingness to cooperate with
HPD, the court notes that Jackson submitted two declarations from Chaney in
which Chaney claims that she told HPD investigators that she did not want Jackson
to lose his job, that she stopped returning HPD’s calls, felt like HPD was “blowing
the whole thing out of proportion,” “regretted filing the complaint,” and
“believe[d] the police department [was using her] as a pawn.” Doc. 74-3 at 2–5.7
These contentions do not establish pretext because an overly aggressive or rigorous
investigation of Jackson’s purported conduct, by itself, does not indicate that HPD
possessed a discriminatory motive, especially since Chaney never retracted her
accusations against Jackson, or otherwise indicated that HPD manufactured the
charges against Jackson. See doc. 74-3. In fact, Chaney’s opinion that HPD
investigators acted aggressively in attempting to obtain a statement from her
actually undermines Jackson’s contentions regarding the alleged incompleteness of
the investigation. After all, Jackson cannot reasonably contend that the
investigation was “completely insufficient[,]” while simultaneously implying that
investigators pursued the complaint overly aggressively. Doc. 74 at 23. Moreover,
Chaney’s perception that HPD was “blowing the whole thing out of proportion” is
just as likely a result of the serious nature of her complaint, rather than evidence of
HPD’s alleged discriminatory animus. Basically, Jackson is asking the court to
give Chaney, whom he tried to pressure from filing a complaint against him, a veto
over HPD’s disciplinary determinations. The court declines to do so because, like
Curiously, a month after Chaney’s first declaration in which she expresses that
she regretted filing the complaint, and four months before she filed her second
declaration where she indicated that she felt like a “pawn,” she executed an
affidavit stating that Jackson’s conduct made her feel “scared and uncomfortable”
and that she “thought [she] needed to tell someone or he would keep doing this.”
See doc. 61-5.
the court, Chaney is not a “super personnel department that . . . [has the right to]
second-guess an employer’s decisions.” Elrod v. Sears, Roebuck Co., 939 F.2d
1466, 1470 (11th Cir. 1991).
Finally, Jackson’s contention regarding Chief Roberson and Mayor
McBrayer’s access to the complete investigation file is also unavailing. Jackson’s
contention is based on Chief Roberson’s testimony that “not every piece of
information” was presented to him, and that he did not give Mayor McBrayer an
investigation file to review.8 See doc. 90-4 at 15–16. However, Jackson does not
point to exculpatory evidence from the investigation that would have resulted in a
different outcome. Indeed, based on the evidence before this court, there is no
exculpatory evidence. Specifically, the investigation revealed (1) a series of
sexually suggestive text messages, which Jackson concedes could be interpreted by
a reasonable person as inappropriate, see docs. 61-1 at 15; 61-3 at 2–6, (2) a video
recording of the traffic stop indicating that Jackson had no valid basis for the stop,
see doc. 61-25, (3) evidence that Jackson manually disabled the MVR before he
exited his vehicle, see doc. 61-11 at 18, (4) an eleven minute phone call that is
consistent with Chaney’s account that Jackson attempted to have her “back him
To the extent that Jackson is attempting to assert a cat’s-paw theory of disparate
treatment centered on alleged discriminatory animus harbored by Sgt. Didcoct, see,
e.g. Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999), this
contention fails in light of Jackson’s failure to proffer any evidence that Sgt.
Didcoct harbored discriminatory animus against him.
up,” see docs. 61-3 at 7; 61-8, and (5) numerous records indicating that Jackson’s
MVR equipment was fully operational, see doc. 61-1 at 64; 61-4; 61-11 at 17.
Moreover, Jackson received an opportunity to respond to the allegations in writing,
doc. 61-11 at 3, and testified at his disciplinary hearing with the assistance of
counsel, docs. 61-10 at 3; 61-11 at 11. Taken together, Jackson has failed to proffer
any evidence of pretext beyond tenuous innuendo. See Bryant,575 F.3d at 1308.
Accordingly, because Jackson has failed to “undermin[e] the legitimacy of [the
City’s] proffered reason[,]”Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1346
(11th Cir. 2000), summary judgment is warranted on his ADA and ADEA
D. Jackson Failed to Establish the Necessary Causal Link between his
EEOC charge and his discharge for his Retaliation Claim
The City contends that Jackson failed to introduce evidence of a causal link
between the filing of the initial EEOC charge and his discharge.9 Doc. 60 at 31.
Although it is undisputed that there is close temporal proximity between the filing
of Jackson’s EEOC charge and his discharge, Jackson filed his EEOC charge,
however, after Sgt. Didcoct initiated the investigation, and after learning the City
To establish a prima facie case of retaliation, Jackson must demonstrate that (1)
he engaged in statutorily protected conduct, (2) he suffered an adverse employment
action, and (3) there is some causal relationship between the conduct and the
adverse employment action. See, e.g. Olmsted v. Taco Bell Corp., 141 F.3d 1457,
1460 (11th Cir. 1998).
planned to take action against him. Doc. 32-1 at 2. Moreover, after filing the
charge—and perhaps in an effort to save his job—Jackson apparently then
mentioned his EEOC charge to Chief Roberson and Deputy Chief Copus. Based on
his decision to disclose the charge, Jackson is now contending that a causal link
exists between his charge and his discharge. Basically, Jackson wants the court to
allow him to create causation based on his decision to file a charge after learning
about his pending discipline and his voluntary decision to inform Chief Roberson
about this charge. The court declines to do so because it would result in Jackson
having veto power over HPD’s personnel decisions. Such a right would disrupt the
workplace by encouraging employees who suspect they are about to be disciplined
to engage in protected activity and, thereby, stop their employer from carrying out
the contemplated decision. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 272
(2001) (“Employers need not suspend previously planned transfers upon
discovering that a Title VII suit has been filed, and their proceeding along lines
previously contemplated, though not yet definitively determined, is no evidence
whatever of causality.”); Slattery v. Swiss Reinsurance America Corp., 248 F.3d
87, 95 (2nd Cir. 2001) (“Where timing is the only basis for a claim of retaliation,
and gradual adverse job actions began well before the plaintiff had ever engaged in
any protected activity, an inference of retaliation does not arise.”). Saffold v.
Special Counsel, Inc., 147 Fed. App’x 949, 950 – 51 (11th Cir. 2005) (“When an
employer makes a tentative decision before protected activity occurs, the fact that
an employer proceeds with such a decision is not evidence of causation.”
(emphasis in original) (citing Breeden, 532 U.S. at 268)). Therefore, where, as
here, HPD had already initiated the investigation and had given notice to Jackson
of the intent to take action against him prior to purportedly learning about
Jackson’s EEOC charge, the court finds that Jackson has failed to establish the
necessary causal link between his protected activity and his discharge. See Thomas
v. Dep’t. of Corr. for the State of Ga., 377 Fed. App’x 873, 882 (11th Cir. 2010)
(no causation established where employer contemplated plaintiff’s discharge
before plaintiff filed his charge). Alternatively, as explained above, the retaliation
claim fails because the City has proffered sufficient evidence of a legitimate,
nondiscriminatory justification for Jackson’s discharge, and Jackson has failed to
proffer evidence that the City’s reasons were pretext for unlawful retaliation. See,
e.g. Holifield, 115 F.3d at 1567; see also supra at 22–27. For these reasons,
summary judgment is also due on Jackson’s retaliation claims.
For these reasons, the City’s motion for summary judgment is due to be
granted. The court will enter a separate order consistent with this opinion.
DONE the 21st day of August, 2015.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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